Cited in Howard v. Fountain (Ky. App 1988) for proposition “In a default judgment situation, the defaulting party admits only such allegations on the pleadings as are necessary to obtain the particular relief sought by the complaint.”

Cited in Young v. Disney (Ky App. 2008) for proposition that “In a default judgment situation, the defaulting party admits only such allegations on the pleadings as are necessary to obtain the particular relief sought by the complaint.”

Clifton v. McMakin, 228 Ky. 813, 157 S.W.2d 81 (1941)

Gorin v. Gorin, 292 Ky. 562, 167 S.W.2d 52 (1942)

Watlington v. Kasey293 Ky. 382, 168 SW 2d 988 (1943)

“The petition alleges that the judgment was based on testimony which was untrue, but this is not sufficient to authorize a new trial under section 518 of the Civil Code of Practice, especially where the party adversely affected had ample opportunity to demonstrate the falsity of the testimony, and where the evidence upon which a new trial is sought was available to the party aggrieved at the time of the trial if proper diligence had been exercised. Asher v. Kentucky Timber & Coal Co., 177 Ky. 774, 198 S.W. 205; Nelson v. Gregory, 262 Ky. 740, 91 S.W.2d 29. Appellants admit that while they were preparing their petition for rehearing in this court the alleged inaccuracies in the plat prepared by Basham and Payne were discovered. An equally careful examination of the record while the case was pending in the lower court would have led to the same discovery. The plat prepared by Basham and Payne was filed in the trial court September 28, 1938, and judgment was not rendered until May 29, 1941. During all of this name appellants failed to have the land surveyed or the plat then on file in the case checked by a surveyor of their own selection. They waited until judgment had been rendered by the trial court and affirmed by this court and then seek to have the judgment vacated and a new trial granted on the ground that a survey made after the judgment was rendered by a surveyor selected by them shows that the survey on which the judgment is based is inaccurate. This is not enough to obtain a vacation of the judgment under subsection 4 of section 518 of the Civil Code of Practice. Clifton v. McMakin, 228 Ky. 813, 157 S.W.2d 81; Mason v. Lacy, 274 Ky. 21, 117 S.W.2d 1026; Metropolitan Life Insurance Company of New York v. Myers, 270 Ky. 523, 109 S.W.2d 1194; Metcalf v. Metcalf, 250 Ky. 202, 61 S.W.2d 1083.”

“ . . . . the litigant must not only exercise reasonable and due foresight, prudence and diligence to prepare and keep up with the case and to avoid surprise and misfortune, it is also equally important — indispensably requisite, in fact — that he show a prima facie valid defense. In the present instance the appellees not only did not offer a prima facie valid defense, or even the suggestion of a defense . . . . “

“ . . . . regardless of what conclusion we might have reached as to the sufficiency of appellant’s showing of unavoidable casualty or misfortune had this been a proceeding under Section 518 of the Civil Code of Practice to set aside a judgment rendered at a preceding term, we think that appellant’s showing with respect to the circumstances which prevented it from appearing and defending was amply sufficient to have required the court to set aside the default judgment in question, since, where the motion is made at the same term at which the judgment is rendered, the court is unhampered by procedural rules and should afford any litigant who has not displayed indifference or gross neglect, an opportunity to present a defense which on its face appears to be valid. As said in Vanover v. Ashley, 298 Ky. 722, 183 S.W.2d 944, 945: ‘The question is whether the ends of justice will be furthered by re-opening the case in which one party has obtained a judgment without the other having been heard when he shows the court that prima facie he has a meritorious defense.’ “

“The confusion relied upon as constituting unavoidable casualty or misfortune was, by appellant’s admission, a product of its own organization. Apparently the right hand knew not what the left hand was doing. In Mason v. Lacy, 274 Ky. 21, 117 S.W.2d 1026, it was held that casualty or misfortune that will authorize the vacating of a judgment must be such as could not have been avoided by the exercise of reasonable skill and diligence. In the present case, two firms of attorneys were employed by appellant to defend the action instituted by appellees. In its petition to vacate the judgment appellant alleged that the counsel at Owensboro withdrew from the case, but Louisville counsel had no notice of such withdrawal. When the Owensboro counsel withdrew they must have notified their employer, and it is not alleged that they failed in this respect. If they failed to notify appellant they were guilty of negligence, and if they did give notice of their withdrawal it was appellant’s duty to employ other counsel or to notify the Louisville counsel who had been employed by the state agent. Ordinary care on the part of counsel in the one event, or on the part of appellant in the other, would have guarded against the mishap. In Fuson v. Fuson, 280 Ky. 91, 132 S.W.2d 508, 509, the attorney for the defendant withdrew from the case, and the defendant, with knowledge of this fact, failed to procure another attorney until after judgment had been rendered. The defendant brought suit under subsection 7 of section 518 of the Civil Code of Practice to vacate the judgment, and the circuit court rendered a judgment in conformity with the prayer of the petition. This court reversed the judgment, and held that no unavoidable casualty or misfortune was either alleged or proven which warranted the setting aside of the original judgment. Speaking of the withdrawal of the attorney with no steps taken by the litigant to defend the action, it was said: ‘This was obviously not an unavoidable casualty or misfortune preventing appellee from appearing in the action but was gross neglect on his part. Neglect, mistake or bad advice of counsel is not an unavoidable casualty warranting the granting of a new trial. McCommas v. McCawley, 228 Ky. 263, 14 S.W.2d 1057; Carter v. Miller, 264 Ky. 532, 95 S.W.2d 29; a fortiori negligence of a party himself is not an unavoidable casualty warranting a granting of a new trial.’

“While we do not in any wise condone the actions of appellant and his attorney in absenting themselves, under the circumstances we have mentioned, still they reappeared in the courtroom before the case was submitted to the jury and within ample time for appellant’s side to have been heard without too great inconvenience to the court. Since the policy of the law is to have every litigated case tried on its merits, judgments by default are not favored, and, as such a judgment deprives a defendant of substantial rights, it is lawful only when duly authorized. 49 C.J.S., Judgments, § 187, page 326.

We conclude that the presiding judge abused his discretion when he refused under the circumstances to allow appellant to make defense to the charge preferred against him.”

“ . . . . most of the cases considering the question of “appearance” are those in which the jurisdiction of the court over the person of the defendant is dependent upon some act of his that would bring him into the lawsuit when he has not been served with summons. Under CR 55.01 the word “appeared” has a more particularized meaning because it must be assumed that the defendant has been properly served with summons and is before the court. Otherwise, of course, no 498*498default judgment could be rendered against him. Therefore, our question is not whether the defendant has submitted himself to the jurisdiction of the court, but whether or not he has so participated in the action as to indicate an intention to defend. There must be some act which would signify that the defendant is contesting liability rather than admitting it, and therefore would be likely to contest the motion for judgment if given notice.
“In construing the word “appeared” in CR 55.01, we are of the opinion that it means the defendant has voluntarily taken a step in the main action that shows or from which it may be inferred that he has the intention of making some defense. . . . “

“It is apparent that with the exercise of the slightest degree of care and diligence upon the part of appellants they could have interposed any defense which they desired, and could have introduced any evidence which they had to offer bearing on the value of the property to be taken in the condemnation proceeding. We do not see how the appellants can be relieved from the consequences of their own gross neglect and lack of diligence when the appellee, Housing Commission, was without fault. Workingmen’s Perpetual Building and Loan Ass’n v. Stephens, 299 Ky. 177, 184 S.W.2d 575; Mason v. Lacy, 274 Ky. 21, 117 S.W.2d 1026.”

“Harvey gave little or no personal attention to the action entered against him. He filed no answer or responsive pleading to the petition seeking damages in the amount of $13,300. Other than the discussion had with his codefendant’s attorney, Harvey is not shown to have ever consulted an attorney about this lawsuit until execution was levied over four years later. He explained his failure to employ counsel by saying that he did not think he was liable and that he could “explain my own case”. He did not trouble himself at any time to learn the status of the case on the docket. If he had exercised proper diligence on the day the case was first called, he would have discovered the true facts and would not have made a mistaken assumption about the continuance. His conduct and attitude indicated that he was almost wholly indifferent to the matter. This is confirmed by his failure to investigate the default judgment after appellant informed him of it. One is required to give personal attention to the defense of a case. Indifference or neglect in defending one’s case does not constitute unavoidable casualty or misfortune. This is true even though counsel may have been employed. Douthitt v. Guardian Life Insurance Co. of America, 235 Ky. 328, 31 S.W.2d 377; Hoskins v. Bloomer, 304 Ky. 543, 201 S.W.2d 716.”

“Direct attacks upon a judgment, as by appeal or by motion for new trial, are commonly accepted practice. CR 60.02 in addition provides the trial court with extensive power to correct a judgment even after recourse has been had to the usual methods of attack. On motion, the court is empowered to relieve a party from a final judgment under certain extraordinary circumstances and upon such terms as it deems just. CR 60.02 addresses itself to the sound discretion of the trial court. Tozer v. Charles A. Krause Milling Co., 3 Cir., 1951, 189 F.2d 242; see Civ.Code Prac. § 522; Martin v. Conley, 99 S.W. 613, 30 Ky.Law Rep. 728. Two of the factors to be considered by the trial court in exercising its discretion are whether the movant had a fair opportunity to present his claim at the trial on the merits and whether the granting of the relief sought would be inequitable to other parties. Moore’s Federal Practice, 2d Ed., Sec. 60.19; see Civ.Code Prac. § 518; Mason v. Lacy, 274 Ky. 21, 117 S.W.2d 1026.”

“ . . . . It is true that a default judgment may not be based on a complaint which completely fails to state a cause of action, but it is also true that much leniency is shown in construing such a complaint; it need not possess the qualities of immunity to attack by demurrer (or attack under CR 12.02(7)). 30A Am.Jur., Judgments, § 213. The allegations of the complaint, when construed with the exhibits filed with it, as in this case, adequately support the judgment. . . . . “

“We understand that granting of default judgment is in most cases discretionary with the trial court. Harris v. Commonwealth, Ky. App., 688 S.W.2d 338 (1984). Yet we also realize that default judgments are not looked upon with favor as it is the policy of the law to have every case decided on its merits. Ryan v. Collins, Ky., 481 S.W.2d 85 (1972); Mullins v. Commonwealth, Ky., 262 S.W.2d 666 (1953). It is the opinion of this court that it was an abuse of discretion for the trial court to grant default judgment in favor of appellee, after having given appellant leave to show cause why that judgment should not be reached, and defendant responded by producing prima facie defenses and counterclaims. Kentucky’s highest court similarly resolved this controversy in Childress v. Childress, Ky., 335 S.W.2d 351 (1960). The defendant in that case had also failed to timely answer or appear against the complaint. Defendant’s attorney filed a motion out of time for leave to answer and defend, citing his defenses. The trial court overruled his motion and entered default judgment. That judgment was reversed.”

KRS 60.060 – Dicta – Basically, official return on service cannot be questioned.

“The court’s entry of the default judgment was not only erroneous but, having been obtained without notice to the appellant, is void as a matter of law. Thus, it had no discretion in ruling on the motion to set the judgment aside. Some courts have held that the failure to give the required notice is a mere procedural defect which “should not usually be treated as so serious as to render the judgment void.” [citation omitted] Nevertheless, our former Court of Appeals, in Smith v. Gadd, supra at 497, cited approvingly the case of Ken-Mar Airpark v. Toth Aircraft & Accessories Co., 12 F.R.D. 399, 400 (W. D. Mo. 1952), which holds that the lack of notice required by Rule 55(b)(2) of the Federal Rules of Civil Procedure*fn2 is “a failure of due process and the judgment is a nullity.” In the Hankins case, supra, this Court described the failure to give notice of the application for default judgment as a “fatal defect.” Id. at 585. Clearly, it is settled in Kentucky that failure of the plaintiff to give any notice of the application for default where the defendant has appeared raises questions of due process, rendering the judgment void within the meaning of CR 60.02(e). Thus, the appellee’s argument concerning the balancing of equities and the timeliness of Kearns’ motion to set aside the judgment are not germane to the issue at hand.

When a defendant against whom a default judgment is entered fails to move the circuit court to set it aside, but instead appeals the default judgment directly, review is limited to determining whether the pleadings were sufficient to uphold the judgment and whether the appellant was actually in default

fn. “6. Of course, an inherent characteristic of a direct appeal from a default judgment is that the appellant has failed to preserve his claim of error. Ordinarily, we review unpreserved claims under the manifest injustice standard established in CR 61.02, the “substantial error” rule. However, the standard of review we apply now became a part of our common law in Rouse v. Craig Realty Co., 203 Ky. 697, 262 S.W. 1083 (1924), before adoption of our current rules of civil procedure. Subsequent to the adoption of the current civil rules, the issue arose again in Mingey v. Cline Leasing Service, Inc., 707 S.W.2d 794 (Ky.App.1986), and we elected to apply the more specific Rouse standard of review despite the availability of CR 61.02. Jeffrey followed Mingey; therefore, we now follow Jeffrey.”
Fn. “7. While the circuit court struck the corporations’ answers in the same order granting default judgment from which this appeal is taken, appellants do not challenge the propriety of the striking, nor would they be permitted to do so. Under Jeffrey v. Jeffrey, supra, the default judgment itself may be appealed directly without preservation of the error, but the rule requiring preservation would still apply to any claim of error in striking the answers. The corporations did nothing to preserve such a claim of error, and they do not ask us to consider the striking of the answers as palpable error under CR 61.02.”

“This case requires us to determine whether a state employee, after receiving notice of her employer’s intent to dismiss her, waives her right to a pre-termination hearing by repeatedly engaging in conduct that delays the hearing. The Kentucky Personnel Board concluded that Appellee, Wanda Faye Wade, did not waive her right to a pre-termination hearing, and that her dismissal therefore violated her right to due process. The Franklin Circuit Court and Kentucky Court of Appeals agreed with this conclusion and affirmed. We granted discretionary review and now reverse.”

“It is the holding of this Court that the trial judge in a civil case, in the absence of a legal adjudication of incompetency, has no duty to take steps on his own to protect the interests of any defendant other than as provided in existing CR 17.03.”

The trial court denied William’s motion on the basis that he failed to bring the motion within a reasonable time. CR 60.02 provides “[t]he motion shall be made within a reasonable time[.]” While trial courts are afforded discretion to address what constitutes a reasonable time under CR 60.02, see Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983), the law is clear that void judgments are “not entitled to any respect or deference by the courts.” Foremost Ins. Co. v. Whitaker, 892 S.W.2d 607, 610 (Ky.App.1995) (citation omitted). Despite a court’s discretion to determine a reasonable time period to file a CR 60.02 motion, “[a] void judgment is a legal nullity, and a court has no discretion in determining whether it should be set aside.” Id. (citing Bertelsman and Philips, Kentucky Practice, CR 60.02, Vol. 7, p. 396 (4th ed.1984)). See also Rogers Group, Inc. v. Masterson, 175 S.W.3d 630, 635 (Ky.App.2005) (a void judgment cannot acquire validity with the passage of time).

“A court must have personal jurisdiction to hear a matter affecting a specific person. Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky.2007) (citation omitted). Here, William argues the trial court lacked personal jurisdiction to enter a judgment or order affecting him personally because service of process was insufficient. The record in this case reveals that William was constructively summoned by a warning order attorney, and the trial court’s order denying William’s CR 60.02 motion states that constructive service was insufficient. KRS6 454.165 provides that “[n]o personal judgment shall be rendered against a defendant constructively summoned, and who has not appeared in the action, except as provided in KRS 454.210.” Absent an appearance by the party, constructive service alone is not sufficient to subject nonresidents to a personal judgment by a court of this state. Dalton v. First Nat. Bank of Grayson, 712 S.W.2d 954, 958 (Ky.App.1986) (citing KRS 454.165). In Smith v. Gadd, 280 S.W.2d 495, 497 (Ky.1955), the term appearance was described as arising “by implication from the defendant’s seeking, taking, or agreeing to, some step or proceeding in the cause, beneficial to himself or detrimental to the plaintiff, other than one contesting jurisdiction only.” (quoting 13 Am. Jur., Appearances, § 10.)”

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